Title II Legal Battle Will Continue Until a Legislative Compromise is Made

June 15, 2016

WASHINGTON D.C. —­­ Yesterday, the U.S. Court of Appeals for the D.C. Circuit upheld the FCC’s 2015 Open Internet Order, which gave the agency broad authority to regulate the Internet. However, this is only the next step in the process of challenging the Order.

While two members of the three-judge panel voted in support of the FCC, Judge Stephen Williams dissented on the grounds that, while the FCC has the authority to reclassify broadband service under Title II, it failed to provide adequate reasoning for doing so.

“It’s encouraging that that Williams’s dissent focused on our arguments that will be the main focus of our appeal,” said Berin Szóka. “The core issue of this case, which was largely ignored in the majority opinion, is whether or not the FCC should receive Chevron deference in this case. As Williams notes, the agency’s broad forbearance from a significant amount of Title II’s statutory requirements represents a completely unacceptable attempt by the FCC to rewrite the statute to suit its own preferences.”

Since this ruling came from a three-judge panel, the next step in the litigation process is an appeal for an en banc review before the full D.C. Circuit. Depending on the outcome, the case may then progress to the Supreme Court.

“We’re facing what could potentially drag out to be another decade of litigation that could all be avoided if Congress could reach a legislative compromise,” continued Szóka. “The question of the FCC’s authority could be easily resolved by legislation that provides clear, narrowly-tailored authority to address net neutrality concerns. The Republican-controlled House passed such a measure as part of a Comm Act update in 2006, but the bill failed in the Senate. Democrats tried to negotiate a compromise in 2010, and Republicans offered one last year. Unfortunately, current political attitudes make such a deal seem unlikely.”

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